1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:12-cr-00623-BAS Document 176 Filed 04/25/24 PageID.1056 Page 1 of 3
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case Nos. 12-cr-00623-BAS-1
` 17-cr-01213-BAS-1
`
`ORDER DENYING MOTION TO
`REDUCE SENTENCE
`
`(ECF No. 170 in 12cr0623)
`(ECF No. 71 in 17cr1213)
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`DIANGELO KEITH JOHNSON,
`Defendant.
`
`
`
`In 2012, Defendant DiAngelo Johnson was sentenced to 41 months for being a felon
`
`in possession of a firearm. (Case No. 12-cr-0623, ECF No. 37.) He was released in that
`case on April 9, 2015. In 2017, he was again convicted of being a felon in possession of a
`firearm and was sentenced to 90 months. (Case No. 17-cr-1213, ECF No. 40.) He was
`also sentenced to an additional 12-months custody to run consecutive to the 90-month
`sentence for a violation of supervised release in the earlier case. (Case No. 12-cr-0623,
`ECF No. 137.)
`
`Defendant files a letter with the Court asking that his sentence in either case be
`reduced because of the change in the Sentencing Guidelines. (Case No. 12-cr-623, ECF
`
`- 1 -
`
`12cr0623 / 17cr1213
`
`

`

`Case 3:12-cr-00623-BAS Document 176 Filed 04/25/24 PageID.1057 Page 2 of 3
`
`
`No. 170; Case No. 17-cr-1213, ECF No. 71.) Because the new guidelines would not
`decrease Defendant’s sentencing guideline range in either case, the request is DENIED.
`
`The U.S. Sentencing Commission adopted amendments to the United States
`Sentencing Guidelines (“U.S.S.G.”), which were submitted to Congress and became
`effective November 1, 2023. See Sentencing Guidelines for the United States Courts, 88
`Fed. Reg. 60534 (Sept. 1, 2023); U.S.S.G. Amend. 821. Under Part B, these retroactive
`amendments added an “Adjustment for Certain Zero-Point Offenders.” U.S.S.G. § 4C1.1.
`This adjustment provides for a two-point decrease in the offense level for defendants who
`“did not receive any criminal history points” when calculating the defendant’s criminal
`history. Id. § 4C1.1(a)(1)–(10).
`In addition, under Part A, these amendments changed the criminal history points
`added for defendants on post-release status when calculating a defendant’s criminal history
`under U.S.S.G. § 4A1.1. The original sentencing guidelines provided:
`
`Add 2 points if the defendant committed the instant offense while under any
`criminal justice sentence, including probation, parole, supervised release,
`imprisonment, work release, or escape status.
`U.S.S.G. § 4A1.1(d) (before amendment). The revised guidelines provide:
`Add 1 point if the defendant (1) receives 7 or more [criminal history] points
`under subsections (a) through (d), and (2) committed the instant offense while
`under any criminal justice sentence, including probation, parole, supervised
`release, imprisonment, work release, or escape status.
`Id. § 4A1.1(e) (Nov. 1, 2023).
`
`Defendant filed a request in both of his cases (Case Nos. 12-cr-0623 and 17-cr-1213)
`asking that his sentence be reduced because of these guideline amendments. The Court
`referred the case to Federal Defenders for evaluation. (ECF No. 173.) Federal Defenders
`has filed a Status Report concluding the Court “can decide the Motion on the existing
`record without the assistance of counsel.” (ECF No. 175.)
`
`In Defendant’s most recent case, Case No. 17-cr-1213, he received twelve criminal
`history points plus two points because he was on supervised release for the 2012 case.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 2 -
`
`12cr0623 / 17cr1213
`
`

`

`Case 3:12-cr-00623-BAS Document 176 Filed 04/25/24 PageID.1058 Page 3 of 3
`
`
`(Case No. 17-cr-1213, ECF No. 30, ¶¶ 39–41.) Fourteen criminal history points resulted
`in a criminal history category of VI. Under the new guideline calculations, he would only
`have received one additional criminal history point instead of two (because he had more
`than 7 criminal history points). Thus, his criminal history score would have been thirteen
`instead of fourteen. However, criminal history category VI is for any defendant who
`receives thirteen or more criminal history points. Under either calculation, Defendant’s
`criminal history category is a VI.
`
`Similarly, in the 2012 case, Defendant received ten criminal history points, and two
`points were added because he was on Probation at the time of the offense. (Case No. 12-
`cr-623, ECF No. 30, p. 10). Twelve criminal history points resulted in a criminal history
`category of V. Under the new guidelines, only one point would have been added instead
`of two, resulting in a criminal history score of eleven instead of twelve. However, criminal
`history category V encompasses those defendants who have criminal history scores of 10,
`11, or 12. Under either calculation, Defendant’s criminal history category in the 2012 case
`is a V.
`
`Because the new amendments to the guidelines would have no impact on the
`calculation of Defendant’s sentencing guidelines, the request to reduce his sentence
`because of these amendments is DENIED.
`
`IT IS SO ORDERED.
`
`DATED: April 25, 2024
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 3 -
`
`12cr0623 / 17cr1213
`
`